Discretionary Powers:
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Article 161 of the Constitution provides the Governor with the power to “remit or commute the sentence of any prisoner”. However, the Governor’s decision will be subject to judicial review by the constitutional courts.
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Currently, the immediate question is whether there is an independent, discretionary power vested with the Governor with regard to Articles 161 and 163 of the Constitution.
Controversies related to Governor Decisions:
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TN Governor:
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TN Governor did not invite AIADMK interim general secretary V.K. Sasikala to form the government despite the fact that her faction commanded a majority in the Legislative Assembly.
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Governor’s decision on the remission of seven convicts in the Rajiv Gandhi assassination case.
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Maharashtra Governor:
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Governor refused to accept the date of election of the Speaker recommended by the State government. This refusal goes against the principle of constitutional government. Under Article 178, the constitution did not assign any role to the governor in the election of the speaker. It is the house rule which says the governor shall fix the date. So, if the governor refused to accept the date of the election, the house can make amendments to that particular rule which empowers the governor to fix the date. It is the first time in the history that governor refused to fix the date of the election and so the election has not been held
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Kerala Governor:
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Governor alleged that he made the reappointment of Vice-Chancellor of Kannur University under the pressure of the Kerala government. Although, the reappointment has been done in accordance with the law. Further, the governor said that he does not want to hold the position of chancellor, which he got in an ex officio capacity.
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This move has been in question as here the governor was not required to act on the advice of the Council of Ministers, also clarified by Supreme Court in Gopalakrishnan vs Chancellor, University of Kerala case. Here the governor can act independently, and make the choice considering the merit of the appointee before signing the appointment letter.
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Evolution of discretionary powers of the governor:
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Before independence, the governor was the absolute ruler of the province, who was answerable only to His Majesty.
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B.R. Ambedkar, while framing the constitution, ensured to make governor only a constitutional head and to vest executive powers in the elected government.
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But, at the same time, certain discretionary powers have been allotted to the government to ensure independence.
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The powers of government in the constitution create some ambiguity. Article 163, which was simply re-produced from section 50 of the Government of India Act in 1935, introduced vagueness about the actual powers of the governor. This was corrected by the Supreme Court of India in Shamsher Singh(1974) case and later in Nabam Rebia (2016). The courts have held that the executive power of the governor can only be exercised with aid and advice of the council of ministers, except in exceptional circumstances.
SC view:
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In the Nabam Rebia and Bamang Felix v. Deputy Speaker (2016) case, the Supreme Court, speaking through a five-judge Bench, viewed that the discretionary power of the Governor is extremely limited and entirely amenable to judicial review.
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Pertaining to the exercise of discretion, in Samsher Singh v. State of Punjab (1974), a seven-judge Bench of the Supreme Court had held that the Governor may do so only “in harmony with his Council of Ministers”.
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In an effort to do so, the Governor is prevented from taking a stand against the wishes of the Council of Ministers.
How the governor should work?
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It was seen that that confrontation takes place only in opposition-ruled states, which shows that political expediency has overtaken constitutional propriety.
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The governor should work in an impartial manner and should not try to create a parallel government.
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In the words of Pandit Thakur Das Bhargava, “the governor will be a man above party, and he will look at the minister and government from a detached standpoint”